10 Years Later, Still Not Playing Fair at Guantanamo Bay

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In a courtroom where judges and officers mix, fact merges with Hollywood fiction.

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Remember the scene in A Few Good Men, where Jack Nicholson, as Col. Nathan R. Jessup, goes head-to-head in a military courtroom with J.A. Preston , as Judge Julius Alexander Randolph? Remember when the Guantanamo base leader Jessup turns to the judge and says "I don't know what the hell kind of unit you're running here" and the judge immediately turns right back around and says to Jessup, "And the witness will address this court as 'Judge' or 'Your Honor.' I'm quite certain I've earned it. Take a seat, Colonel." 

Well, that's essentially what's happening right now, for real, down at Guantanamo Bay. A military judge on Tuesday asked the commander of the terror-law prison there to explain why military officials are reviewing privileged attorney-client communications between the detainees and their lawyers -- who, it must quickly be said, already have been cleared by the Pentagon for this type of legal work. Later Tuesday, Rear Adm. David Woods told the military judge, Army Col. James Pohl, that his team's "security review" was necessary.


"I am trying to please all parties," testified the decidedly un-Nicholson-like Woods. More testimony on the matter is scheduled for Wednesday. That's one of the great things about America and its code of military justice. In a case about a man named Abd-al-Rahim al-Nashiri, captured 10 years ago and accused of choreographing the bombing of the USS Cole in 2000, an Army colonel can overrule a Navy admiral when that admiral comes into that colonel's courtroom. Fact and Hollywood fiction merge right here, right now.

Benjamin Wittes at his Lawfare site has wonderful coverage of this case and this particular detour from its merits. And that's essentially what justice at Gitmo has been for the last 10 years: one detour after another from the substance of the cases against the detainees. Some detours were the fault of the Bush Administration, when it announced and then high-handedly pressed its unlawful tribunal procedures. Some were the fault of Congress, when it passed the unconstitutional Detainee Treatment Act of 2005 and the  Military Commissions Act of 2006.

Some were the fault of the Supreme Court, when it offered the other two branches of government ambiguous directions about tribunal procedures. Some are the fault of the Obama administration, which still hasn't figured out how to get the men prosecuted. Some are the fault of the men themselves, gaming the system like all criminal defendants do. There is enough blame to go around and it's astonishing that we are here, in January 2012, still unable to agree upon a productive balance between detainee due process and national security. 

Meanwhile, for entertainment purposes only, as we wait for the current Gitmo dispute to be resolved, here's the famous scene from A Few Good Men  that came just a few minutes after the dialogue I described:  



The famous movie about the American military presence at Guantanamo debuted 20 years ago. It's been now more than 10 years since the Twin Towers fell. And it's been more than 10 years since President George W. Bush ordered the use of military tribunals to prosecute certain terror suspects. And still the executive branch is trying to have it both ways: trying to deprive the detainees out of fundamental trial rights -- like the right to talk freely to their DOD-approved attorneys -- while claiming the unequal rules are required by national security.

You want to know why Guantanamo Bay is still open? You want to know why so many of the detainees there have not yet been successfully processed and prosecuted out of there? You want to know why the place is still a stain upon our national and international reputation? It's because of situations like this, where one hand (the intelligence folks) is sabotaging the other hand (the legal folks), all the while hoping that the courts will defer to the executive branch in the name of "national security." 

The Army colonel has the better legal argument here than does the Navy Real admiral. The defendants at Gitmo are entitled to have their communications privileged when they write to defense lawyers (who already have been vetted by the Pentagon). The attorney-client privilege goes to the heart of our version of the rule of law. It fosters candor. It encourages a fair testing of the evidence. And it tells the world that the Guantanamo trials are not sham trials held before Kangaroo courts. Twenty years ago, Hollywood got it right. We still have it all wrong.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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